Multistate Bar Exam Evidence 4 — Questions and Answers
Question 1: A murder victim's statement to a 911 operator saying 'My husband is trying to kill me!' is sought to be admitted after the victim dies. Under Crawford v. Washington, this statement is:
- Testimonial and barred by the Confrontation Clause if the defendant cannot cross-examine
- Non-testimonial and admissible because it was made under emergency circumstances (Correct answer)
- Admissible as a dying declaration regardless of its testimonial nature
- Inadmissible hearsay with no applicable exception
Correct answer: Non-testimonial and admissible because it was made under emergency circumstances
Under Davis v. Washington, statements made to enable police to respond to an ongoing emergency are non-testimonial and not barred by the Confrontation Clause.
Question 2: A defendant charged with sexual assault seeks to introduce evidence of the victim's prior sexual conduct. Under FRE 412 (Rape Shield), this evidence is:
- Generally admissible to show the victim's credibility
- Generally inadmissible, with narrow exceptions (Correct answer)
- Admissible only if the defendant testifies first
- Admissible if older than one year
Correct answer: Generally inadmissible, with narrow exceptions
FRE 412 (the rape shield law) generally bars evidence of a victim's other sexual behavior or predisposition, with narrow exceptions.
Question 3: A police officer testifies that he arrested defendant based on information from a reliable informant. The defendant seeks to compel disclosure of the informant's identity. The government invokes the informer's privilege. The court will:
- Always require disclosure to protect the defendant's rights
- Balance the public interest in protecting informants against the defendant's need for disclosure (Correct answer)
- Never require disclosure of a confidential informant
- Allow the jury to decide if disclosure is necessary
Correct answer: Balance the public interest in protecting informants against the defendant's need for disclosure
Courts balance the government's interest in protecting informant identities against the defendant's need to prepare a defense, sometimes allowing in camera review.
Question 4: Which of the following is NOT an element required for the dying declaration exception under FRE 804(b)(2)?
- The declarant must be unavailable as a witness
- The statement concerns the cause or circumstances of the impending death
- The declarant must have believed death was imminent when speaking
- The declarant must have actually died before trial (Correct answer)
Correct answer: The declarant must have actually died before trial
FRE 804(b)(2) does not require actual death; the declarant need only have believed death was imminent, but must be unavailable (which can include incompetency or other reasons).
Question 5: During trial, a party attempts to impeach their own witness after the witness gives damaging testimony. Under FRE 607:
- A party may never impeach their own witness
- A party may impeach any witness, including their own (Correct answer)
- A party may impeach their own witness only with prior convictions
- A party may impeach their own witness only with written inconsistent statements
Correct answer: A party may impeach any witness, including their own
FRE 607 abolished the common law voucher rule and permits any party, including the calling party, to impeach any witness.
Question 6: A corporation's internal audit report prepared after a workplace accident is sought in discovery. If prepared primarily in anticipation of litigation, it may be protected under:
- The attorney-client privilege exclusively
- The work-product doctrine under FRCP 26(b)(3) (Correct answer)
- The business records exception, making it admissible
- The executive privilege doctrine
Correct answer: The work-product doctrine under FRCP 26(b)(3)
Documents prepared in anticipation of litigation are protected by the work-product doctrine, providing qualified protection from discovery.
Question 7: A lay witness testifies that in her opinion, the defendant 'seemed intoxicated.' This opinion testimony is:
- Inadmissible because only experts may give opinion testimony
- Admissible under FRE 701 as rationally based on personal perception (Correct answer)
- Inadmissible unless the witness is trained in detecting intoxication
- Admissible only if the witness first describes all observed behaviors
Correct answer: Admissible under FRE 701 as rationally based on personal perception
FRE 701 permits lay witness opinion testimony that is rationally based on the witness's own perception and helpful to understanding the testimony.
Multistate Bar Exam Evidence 4
A murder victim's statement to a 911 operator saying 'My husband is trying to kill me!' is sought to be admitted after the victim dies.
Under Crawford v.
Washington, this statement is: